June 08, 2005

In 1992, Wesley Baker robbed Jane Tyson in a Catonsville, Maryland parking lot. Then, having netted three dollars in the robbery, he murdered her in front of her grandchildren.

In the Washington Post's antiseptic report of the incident this morning, Baker "approached Tyson and her two grandchildren, pressed a gun to the left side of her head and squeezed the trigger." The Post's website helpfully presents a family photo of Baker, wearing a sweater, posing tastefully in front of a drawing of a winter scene.

A jury in Harford County, where the trial was moved at Baker's request, convicted him in 1992 of killing Jane Tyson, 49, in front of her grandchildren in the parking lot of the Catonsville mall. Shortly before Baker was to be executed, Maryland Governor Parris N. Glendening declared a halt to executions until the release of a University of Maryland study examining possible racial bias in Maryland's death penalty.

Anyone who is not terminally naive knows that when someone who does not support capital punishment (whatever he says as a politician) seeks a study of whether there is racial bias in the system, the answer will come first and the evidence later. Here is a link to the executive summary of the report, released in 2003, and here is a link to the complete report. In the Post's one-sentence summary: "University of Maryland researchers announced in 2003 that prosecutors were far more likely to seek the death penalty for black suspects charged with killing white victims, a racial disparity that mirrored national trends."

Back to today's news. The defense lawyers for Baker are telling Maryland's Court of Appeals, the highest state court, that the University of Maryland study shows that Baker deserves a hearing on his claim that racial bias infected his prosecution. (The article is unclear whether he's seeking a new trial or simply a new sentencing hearing.)

Yesterday, citing those findings, attorney Gary Christopher said that seven of every 10 black men sentenced to death for killing a white victim would have been spared had their victims been black. Christopher said Maryland's criminal justice system has devalued the lives of the state's black residents, sending the message that "the Maryland death penalty statute is there to protect white suburbanite communities from the predations of black men."

Leaving aside the inflammatory rhetoric, the lawyer raises an interesting point, which I'll get to later.

I haven't read the University of Maryland report -- it's very long, and life is short -- but I can say what some of the problems generally are in reaching a conclusion that the system is biased.

First, there's a very small sample size of convicted murderer on death row in Maryland. (According to the Bureau of Justice Statistics, as of December 31, 2003, there were only 11 murderers on death row in Maryland, 4 white and 7 black. There have been only 3 executions in Maryland since 1977.) You can expand the sample by looking at all cases charged as murder, or even at all cases classified as murder, but the fact remains that the sample size will be pretty small. Remember that all the anti-capital-punishment litigation over the past 40 years has created a minefield for the prosecution, and only a small number of murder cases would even be considered for a capital charge, just to avoid those judicially created landmines.

Second, there isn't any way to avoid this politically incorrect statement, but black perpetrators commit a disproportionate number of murders. I wish it weren't the case, but it is. According to the Bureau of Justice Statistics, looking at nationwide data, for murders from 1976 to 2002, 52% of offenders were black and 46% were white. BJS summarizes this by saying that blacks were seven times more likely to commit murder than whites in 2002 (based on their percentage in the population).

I don't want to leave this hanging, so let me also point out here what the statistics are for murder victims: 47% were black and 51% were white. The nationwide data also show that the overwhelming number of victims of black murderers are also black -- 94% of black victims were killed by blacks and 86% of white victims were killed by whites. This is of a piece with the National Crime Victimization Survey, which repeatedly finds that 80% to 85% of all violent crimes against blacks are committed by other blacks. Who is concerned about these black crime victims?

With all the talk about race discrimination against black murderers, I wish people would care a little more about the black victims. Maybe it's time to take black-on-black murder more seriously. Gary Christopher says that "Maryland's criminal justice system has devalued the lives of the state's black residents," but he doesn't argue that black-on-black murder should be charged as capital; he argues instead that black-on-white murder should not be.

Third, in Maryland, decisions to charge a capital murder are made by the local State's Attorney, the chief prosecutor for a county (or for the city of Baltimore). There will naturally be some variation from county to county on how these cases are charged, especially because the State's Attorney is an elected official who may run on his or her position on capital punishment. Even the principal author of the University of Maryland study, quoted in today's Post article, recognizes that it's the local prosecutor whose decision results in any disparity, and he doesn't claim it's intentional (which should mean it's not "discrimination" in the first place):

Paternoster, in announcing his findings, said the explanation for the disparities rested with state's attorneys, not juries, although he was careful not to impugn the prosecutors' motives. He said that his analysis "doesn't mean there is racial animus" by prosecutors but rather that "the product of their action does result in racial disparity."

In fact, the study, from my quick glance at it, focuses on "geography" and on what it calls a jurisdiction effect. Baltimore County has the highest percentage of murders charged as capital cases, and the percentage in other jurisdictions goes down from there. As a Baltimore Sun columnist pointed out around the time of the moratorium in 2002:

It is, in observable fact, a function of other variables. In Baltimore County [which excludes the city of Baltimore], State's Attorney Sandra A. O'Connor has spent the last quarter-century seeking the death penalty whenever possible. In the city [of Baltimore], State's Attorney Patricia C. Jessamy does not.

So one county prosecutor is seeking capital punishment and others are not (or not as much). The Post article notes:

Baker is one of seven prisoners on Maryland's death row, and one of three who were convicted of crimes committed in Baltimore County.

The "problem" is that Baker went to Baltimore County instead of Baltimore City. Had he murdered someone, white or black, in the city, he probably wouldn't be on death row. Is that race discrimination? If anything, when the prosecutor in a city whose population is about 64% black refuses to seek capital punishment for people who murder that largely black population, I would say that the largely black population is being less protected than the largely white population of Baltimore County.

Finally, murder in which the murderer and victim are of different races is often stranger murder. BJS reports that 3 in 10 stranger murders are interracial (either white-on-black or black-on-white) and only 1 in 10 friend or acquaintance murders are interracial. Stranger murders, like Wesley Baker's, more often have the aggravating factors that lead to a death sentence.

UPDATE (6/9): Soccer Dad finds a Washington Post article from May 2002 quoting an assistant to the Baltimore County State's Attorney as well as the Baltimore (city) State's Attorney on their capital charging policies. I like this statement from the Baltimore city prosecutor, who hadn't sought a death sentence since 1998 despite the roughly 250 murders a year in the city:

"My position on the death penalty is that I believe it should be reserved for those individuals who commit the most heinous crimes," Jessamy said. "And we don't ask courts or juries to make that decision for us. We try to be as reasonable as possible."

The "most heinous crimes"? I always thought murder was a pretty heinous crime.

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